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Start Preamble

AGENCY:

Department of Health and Human Services, Administration for Children and Families

ACTION:

Notice of appeal.

SUMMARY:

By designation of the Administration for Children and Families, a member of the Departmental Appeals Board has been appointed as the presiding officer for an appeal of the Administration for Children and Families' (ACF) proposed disapproval of South Carolina's State Child Support Enforcement Plan submitted pursuant to the Social Security Act. ACF asserts that there are no facts in dispute, and has requested that South Carolina's request for a hearing be denied and a decision be made on the existing record. The purpose of this notice is to give interested parties an opportunity to participate.

REQUESTS TO PARTICIPATE:

Requests to participate as a party or as amicus curiae must be submitted to the Departmental Appeals Board in the form specified at 45 CFR § 213.15 by March 27, 2000. Within that time, those persons or organizations seeking participation as parties or amici may file petitions or request extensions of time for submitting petitions to participate, and may also contact the Board to obtain copies of the briefs that the parties have filed.

Counsel: This letter is in response to the State of South Carolina's (State) request for a hearing to contest the Administration for Children and Families' (ACF) proposed disapproval of the State's plan for implementing Title IV-D of the Social Security Act (Child Support and Establishment of Paternity).

The basis for the proposed disapproval is South Carolina's failure to submit by October 1, 1997 a state IV-D plan certifying that it is operating an automated data processing and information retrieval system for child support, as required by section 454(24)(A) of the Social Security Act (Act).

I have designated M. Terry Johnson, a Departmental Appeals Board Member, as the presiding officer pursuant to 45 CFR 213.21. ACF and the State are now parties in this matter. 45 CFR 213.15(a). South Carolina has conceded that it does not have an approvable automated data processing and information retrieval system for child support. The parties therefore agreed that prior to any factual presentation, they would brief the threshold legal questions of whether ACF has the authority to grant South Carolina relief for noncompliance short of disapproval of its state plan, and what the applicable standard for such relief would be. If the presiding officer rules that relief other than disapproval of the state plan is authorized by statute or regulation, an evidentiary hearing would be provided at which South Carolina could present evidence regarding the circumstances that prevented its compliance with the requirement that it have a statewide automated child support enforcement system.

The parties have briefed this threshold issue before the presiding officer. South Carolina argued that ACF has the discretion to grant relief short of disapproving its IV-D plan. South Carolina argued that federal agencies such as ACF generally have inherent, equitable authority to create exemptions from statutory requirements, such as the requirement of plan approval, on a case-by-case basis, and that South Carolina's Start Printed Page 12999reasonable good-faith efforts to comply with the Act, and mitigating circumstances concerning its failure to operate an approvable automated system, were sufficient to permit ACF to use its inherent discretion to grant some relief short of state plan disapproval. South Carolina also argued that ACF must concede that it has discretion in so much as it grants conditional certification to states that are not fully compliant even though there is no explicit congressional authorization for such action. South Carolina further argued that regulations governing the administration of grants at 45 CFR Part 92 provide federal agencies with greater flexibility to address noncompliance than state plan disapproval, and that failure to consider the reasons for noncompliance would be fundamentally unfair and would amount to poor public policy by failing to consider South Carolina's actual performance in achieving the overall goals of the IV-D program.

ACF argued that the statutory language at section 454(24)(A) of the Act requires that a state operate an automated system which meets the specified requirements as a condition of plan approval, and affords ACF no discretion to excuse noncompliance. ACF argued that it has consistently stated in its program issuances that it is not authorized to provide federal IV-D funds to a state that does not have an approved IV-D state plan and that it is required to disapprove a state's plan where the state is not operating an automated system. ACF argued that court decisions that South Carolina cited in its brief are not applicable to the facts and the statutory requirements at issue here, and that 45 CFR Part 92 applies only where not inconsistent with the more specific statutory provisions addressing IV-D plan approval and the requirement of an operating automated system. ACF further argued that South Carolina presented no standards for granting relief from noncompliance short of plan disapproval, and that the presiding officer's authority is limited to recommending a decision as to whether or not a state plan meets federal requirements.

ACF's and South Carolina's briefs are available for inspection by the public, including persons and organizations who file timely requests to participate as parties or amici.

A ruling in ACF's favor on this threshold issue would limit the appeal to the sole question of whether or not South Carolina's state plan is in compliance with federal requirements. Given South Carolina's concession that it does not have an approvable automated data processing and information retrieval system for child support, such a ruling in ACF's favor would end the reconsideration process without an evidentiary hearing. Consequently, the presiding officer is affording interested parties the opportunity to participate prior to the issuance of a ruling.

A copy of this letter will appear as a Notice in the Federal Register and any person wishing to request recognition as a party will be entitled to file a petition pursuant to 45 CFR 213.15(b) with the Departmental Appeals Board within 15 days after that notice has been published. A copy of the petition should be served on each party of record at that time. The petition must explain how the issues to be considered have caused them injury and how their interest is within the zone of interests to be protected by the governing Federal statute. 45 CFR 213.15(b)(1). In addition, the petition must concisely state petitioner's interest in the proceeding, who will represent petitioner, and the issues on which petitioner wishes to participate. 45 CFR 213.15(b)(2). Additionally, if petitioner believes that there are disputed issues of fact which require an in-person evidentiary hearing, petitioner should concisely specify the disputed issues of fact in the petition, and also state whether petitioner intends to present witnesses. Petitioners may also, within 15 days after this notice has been published, request extensions of the time for requesting participation for the purpose of obtaining and reviewing copies of the parties' briefs.

Any party may, within 5 days of receipt of such petition, file comments thereon; the presiding officer will subsequently issue a ruling on whether and on what basis participation will be permitted.

Any interested person or organization wishing to participate as amicus curiae may also file a petition with the Board, which shall conform to the requirements at 45 CFR 213.15(c)(2). This petition, or a request for an extension of time to review the briefs, must be filed within 15 days after this notice, in time to permit the presiding officer an adequate opportunity to consider and rule upon it.

If the presiding officer denies ACF's request for a decision on the written record and rules that a hearing should be held, South Carolina shall be provided a notice of hearing, which shall be held not less than 30 days nor more than 60 days after the date that notice of the hearing is furnished to South Carolina. The notice of the hearing shall also be published in the Federal Register to afford notice to interested parties.

Any further inquiries, submissions, or correspondence regarding this matter should be filed in an original and two copies with Ms. Johnson at the Departmental Appeals Board, Room 637-D, Hubert H. Humphrey Building, 200 Independence Avenue, S.W., Washington, DC 20201, where the record in this matter will be kept.

That record is available for public inspection; interested persons or organizations seeking participation as parties or amici may contact Jeffrey Sacks, Board Staff Attorney, at 202-69-8011 (or at jsacks@os.dhhs.gov) to arrange for inspection and copying of the record. Each submission must include a statement that a copy of the submission has been sent to the other parties, identifying when and to whom the copy was sent. For convenience please refer to Board Docket No. A-99-80.